JOHNNER v. MIMS (2008)

 Supreme Court did not abuse its discretion in granting in part plaintiff's application for counsel fees in this matrimonial action (see Domestic Relations Law § 237[a];  DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168;  see also Matter of Grald v. Grald, 33 A.D.3d 922, 824 N.Y.S.2d 100).   The award of counsel fees was based upon evidence presented at the hearing on plaintiff's application for those fees, as well as upon evidence presented during the 26-day trial (see Matter of Buono v. Fantacone, 252 A.D.2d 917, 919, 676 N.Y.S.2d 343;  see also McArthur v. Bell [Appeal No. 2], 201 A.D.2d 974, 975, 609 N.Y.S.2d 713, lv. dismissed 83 N.Y.2d 906, 614 N.Y.S.2d 388, 637 N.E.2d 279, lv. denied 85 N.Y.2d 809, 628 N.Y.S.2d 52, 651 N.E.2d 920).

 Defendant contends that the court erred in awarding plaintiff counsel fees because plaintiff's attorney failed to provide plaintiff with written, itemized bills at least every 60 days (see 22 NYCRR 1400.2, 1400.3).   We reject that contention.  “[Plaintiff's] attorney complied with 22 NYCRR part 1400 by providing [plaintiff] with the requisite statement of rights and responsibilities and by executing the requisite written retainer agreement with her” (Matter of Winkelman v. Furey, 281 A.D.2d 908, 908, 721 N.Y.S.2d 847, affd. 97 N.Y.2d 711, 739 N.Y.S.2d 355, 765 N.E.2d 851;  see also Mulcahy v. Mulcahy, 285 A.D.2d 587, 588, 728 N.Y.S.2d 90, lv. denied 97 N.Y.2d 605, 737 N.Y.S.2d 53, 762 N.E.2d 931;  cf. Hunt v. Hunt, 273 A.D.2d 875, 876, 709 N.Y.S.2d 744).   Although plaintiff's attorney waited until December 2005 to bill plaintiff for services rendered between August 2004 and December 2005, the right to be billed at least every 60 days is a right afforded to plaintiff, not defendant, and plaintiff waived that right by failing to object to the December 2005 bill (see Winkelman, 281 A.D.2d at 908, 721 N.Y.S.2d 847;  Webbe v. Webbe, 267 A.D.2d 764, 765, 701 N.Y.S.2d 140, lv. denied 95 N.Y.2d 753, 711 N.Y.S.2d 155, 733 N.E.2d 227).   Denial of plaintiff's application on that ground would result in a windfall to defendant (see Webbe, 267 A.D.2d at 765, 701 N.Y.S.2d 140).

We have considered defendant's remaining contention and conclude that it is without merit.

It is hereby ORDERED that the order so appealed from is unanimously affirmed with costs.

MEMORANDUM: